Originally posted 2013-04-11 16:41:06. Republished by Blog Post PromoterTomorrow morning I will appear before the United States Court of Appeals for the Second Circuit, which will hear argument on a case in which I got involved after a final judgment for trademark counterfeiting was entered.  I participated in certain post-trial proceedings and later submitted the […]

The post Oral argument tomorrow at the Second Circuit – Guggenheim Capital v. Birnbaum appeared first on LIKELIHOOD OF CONFUSION™.

Originally posted 2010-03-17 18:26:31. Republished by Blog Post PromoterRemember Foley Hoag vs. Foley & Lardner? Stick a fork in it. It’s Foley cooked! UPDATE:  No, not this Foley.  Not vindicated; not quite. Talk about likelihood of confusion.

The post Foley vindicated appeared first on LIKELIHOOD OF CONFUSION™.

Originally posted 2007-11-02 11:42:42. Republished by Blog Post PromoterSusan Scafidi digs up a real winner: From the continuing annals of faux ethics comes an email from “Kim” — no further signature provided — objecting to Counterfeit Chic’s notes on Jessica Kagan Cushman’s clever scrimshaw bracelets, Chanel’s alleged copies, and Forever 21’s reported copies of the […]

The post Counterfeit ethics appeared first on LIKELIHOOD OF CONFUSION™.

Originally posted 2016-03-24 10:38:04. Republished by Blog Post Promoter Tonight begins Purim – the Jewish holiday that celebrates LIKELIHOOD OF CONFUSION!

The post Happy Purim! appeared first on LIKELIHOOD OF CONFUSION™.

The DMCA online safe harbor is a notice-and-takedown scheme. Web hosts aren’t liable for copyright-infringing third-party uploads unless and until the copyright owner submits a proper takedown notice to the host, at which point the web host can remain legally protected by expeditiously removing the targeted item. By taking web hosts out of the liability chain, the DMCA nominally keeps any infringement disputes being between the uploader and the copyright owner.

To help copyright owners sue anonymous or pseudonymous uploaders, the DMCA provides a procedural fast lane to expedite infringer identifications. 512(h) says that copyright owners can request unmasking subpoeanas of allegedly infringing uploaders simply by requesting the subpoena from a court clerk, rather than pursuing the more time-consuming and expensive process of suing a John Doe and then asking the judge for a subpoena. 512(h) is an artifact of a different time. Knowing what we know now, 512(h) raises obvious concerns about copyright owner ,misuse and uploader privacy risks.

The DMCA handles Internet access providers (IAPs) differently because they don’t “host” any content. As the court says, “a § 512(a) service provider cannot participate in the notice and takedown process, because there is nothing for a § 512(a) service provider to take down.”

Instead, 512(a) provides IAPs with a blanket immunity from copyright infringement when acting in their roles as IAPs, with a huge caveat. The DMCA still requires IAPs to “terminate repeat infringers” to remain eligible for the DMCA safe harbor, which IAPs don’t want to do. They don’t want to lose paying customers, but also, termination of an IAP’s account is materially different than termination of a web hosting account. Losing hosting services kicks the uploader off part of the Internet–bad enough–but losing Internet access kicks the uploader off the entire Internet. That may be a consequence disproportionate to the legal violation, especially when imposed without court supervision or any due process. The Supreme Court will review the interplay between copyright owner takedown notices and IAPs’ liability for uploader-caused copyright infringement in the pending Cox v. Sony case.

Today’s case involves users of BitTorrent. BitTorrent doesn’t conform to the standard DMCA paradigm because it splits the hosting of an allegedly infringing file across a wide number of users, so a 512(c)(3) takedown notice to a BitTorrent “host” doesn’t redress any infringement. As a result, copyright owners have pressured IAPs to act as their copyright cops, including terminating subscribers who repeatedly use BitTorrent.

In addition, copyright owners have requested 512(h) subpoenas from IAPs to identify and sue alleged subscriber-infringers. In this case, a copyright owner requested and obtained (just by asking the court clerk) a 512(h) subpoena to unmask 29 Cox users who allegedly participated in the infringement of the movie Fall. Cox notified the 29 users that their identity would be unmasked; 28 didn’t respond. (Cox didn’t have to give this notice to users; it could have simply forked over the requested information straightaway). One user did object to the 512(h) subpoena in court (he claims any alleged infringement was because he left his wi-fi router open without password protection), and that leads to this Ninth Circuit opinion.

The court says that copyright owners can never send proper 512(c)(3) takedown notices to IAPs because the 512(c)(3) notices must specify the location of the item that it wants taken down–an impossibility if the IAP isn’t hosting the item:

[an IAP] cannot “remove” or “disable access to” any infringing content those subscribers might share, because there is nothing for the § 512(a) service provider to remove. Without the ability to provide a valid (c)(3)(A) notification to § 512(a) service providers, copyright holders cannot satisfy the requirements for issuance of a § 512(h) subpoena….[the] statutory text confirms that a § 512(a) service provider is not a contemplated recipient of a proper (c)(3)(A) notification. For these reasons, the DMCA does not permit a § 512(h) subpoena to issue to a § 512(a) service provider.

This is not a new conclusion. The DC Circuit (the Verizon case) and Eighth Circuit (the Charter case) reached the same conclusion 20 years ago.

[Note: this raise the obvious question–why are copyright owners still making 512(h) requests that multiple appellate courts declared illegitimate a generation ago? You and I both know the answers: (1) most IAPs honor the 512(h) subpoenas, and (2) copyright owners relentlessly undermine every aspect of the DMCA statute.]

The copyright owner tendered an “expert” report that IAPs can disable access to targeted items using destination null routing and port blocking. The court says that even if this were true, it doesn’t satisfy the statute:

an ISP can use these methods only to prevent its own subscribers (and not subscribers of other ISPs) from reaching destination IP addresses containing infringing material or using ports that commonly route infringing material. In other words, an ISP cannot “disable access” to infringing material via port blocking or destination null routing; it can only disable its subscribers’ access to infringing material. Capstone points to nothing in the text or legislative history of § 512 suggesting that Congress contemplated such a piecemeal application of the notice and takedown procedure.

In other words, the DMCA contemplated that “disabling access” to an infringing file meant stopping the hosting of that file. Because IAPs aren’t hosting an uploader’s file, any other remedial interventions don’t satisfy the statute.

[Note: this opinion includes an incredibly rare discussion of 512(e), the oft-overlooked safe harbor for educational institutions hosting faculty uploads. I am not aware of any litigation directly involving 512(e) ever.]

The court reiterates its clear and unambiguous holding: “the DMCA does not permit a § 512(h) subpoena to issue to a § 512(a) service provider.”

To get around this, the copyright owner argued that Cox was “linking” to infringing material, so the copyright owner could negate Cox’s 512(d) safe harbor through its takedown notice. The court rejects this as a technical matter, saying

Connecting a user to the Internet and assigning the user an IP address does not “link” or “refer” the user anywhere, much less to a particular location containing infringing material.

Thus, it didn’t matter that the copyright owner showed that Cox offered hosting services when those services weren’t implicated by the takedown notices.

Implications

I imagine the copyright owners will appeal this ruling to the Supreme Court. However, the Cox v. Sony case could moot this entirely if it provides a clean bill of copyright health to the IAPs.

For now, it’s hard to assess the significance of this ruling given that the legal questions were fully vetted and seemingly resolved over 20 years ago. Maybe now copyright owners will believe it more given that the Ninth Circuit has spoken?

This ruling reinforces that court clerks should not issue 512(h) subpoenas targeting IAPs for their 512(a)-immunized functions. But how does a clerk know if the requested subpoena targets 512(a) or 512(c)/512(d) functions? The 512(c)(3) notices may not make this clear, and it would require court clerks to investigate and evaluate the substance of the subpoena request–essentially, to make a determination about what the 512(h) subpoeana targets. However, the clerk’s role is not to make legal judgments; that’s a judge’s job. In other words, 512(h) routinely, predictably, and impermissibly forces court clerks to exceed their legal authority. This seems like a good reason to strike down the entire 512(h) mechanism or repeal it.

This opinion should also embolden IAPs to toss any 512(h) subpoenas in the trash because they are illegitimate. However, IAPs could have done that a long time ago based on the past precedent and haven’t. Further, IAPs are running scared of copyright owners because of the massive judgments that are being issued by courts who have decided IAPs don’t qualify for 512(a) for not terminating repeat infringers fast enough. Perhaps the Supreme Court will give IAPs more backbone with a favorable ruling in Cox v. Sony. But even if that happens, copyright owners are not going to give up their leverage over IAPs. They will continue to push Congress for new legal tools and look for other ways to undermine IAPs in court. If IAPs think they can placate copyright owners by acquiescing to their 512(h) subpoenas even if the law makes those invalid, they are sorely mistaken.

[Note: If 512(h) subpoenas are categorically illegitimate for 512(a) activities, then I wonder if any users who are unmasked by those illegitimate subpoenas will have tenable claims against the IAPs?]

On that front, there are proposed bills in Congress to impose site-blocking obligations on IAPs, similar to the duties already imposed in the EU. This is essentially what the copyright owners sought in this case, with their proposed technical solutions of destination null routing and port blocking. There are countless problems with IAP site-blocking, which is why SOPA went down in flames over a dozen years ago. But as the old maxim goes, bad policy ideas never die, they just get recycled. UGC is already dying on the Internet, and mandatory site-blocking in the US would speed up that process.

The opinion wasn’t affected by the IAP subscribers’ use of BitTorrent. It’s hard to believe BitTorrent is still a thing nowadays. However, it never went away, and it is regaining some importance due to the combination of (1) the growth of paywalls, plus their inevitable and ongoing enshittification, and (2) more importantly, the removal of material from the streaming databases so that there is no legitimate source to consume the content at all. (See Prof. Mark Lemley’s discussion of that topic). The continued vitality of BitTorrent highlights why copyright owners are desperate to deputize IAPs as their copyright cops and won’t stop until they find a way.

Copyright owners don’t need to rely on 512(h) to unmask Internet uploaders. They can always bring a Doe lawsuit and request an unmasking subpoena from a judge. Obviously copyright owners would much prefer not to do this. A Doe lawsuit is more expensive and takes more time. Also, judges reviewing the subpoena requests won’t grant them automatically, and copyright owners would rather not have judges impeding their desired enforcement efforts.

Case Citation: In re Subpoena of Internet Subscribers of Cox Communications, LLC, 2025 WL 2371947 (9th Cir. Aug. 15, 2025)

Some Other Blog Posts on 512(h)

• Court Quashes 512(h) Subpoena on First Amendment Grounds–In re 512(h) Subpoena to Twitter
• Court Quashes 512(h) Subpoena Submitted to YouTube–Watch Tower v. Kevin McFree
• Twitter Can’t Quash a 512(h) Subpoena
• Court Orders Unmasking Subpoena of Alleged Infringers–Baugher v. GoDaddy
• 2H 2019 and Q1 2020 Quick Links, Part 1 (Copyright, E-Commerce, Advertising)
• 512(h) Doesn’t Preempt Doe Unmasking Lawsuits–Strike 3 v. Doe
• eBay Must Disclose User Identities In Response To 512(h) Subpoenas
• Q2 2015 Quick Links, Part 1 (IP, Marketing and More)
• An Unmasking Effort Gets Gutted Some More – Art of Living Foundation v. Does
• Copyright Doe Defendant Can’t Quash Disclosure Subpoena Anonymously—Hard Drive Productions v. Does (Guest Blog Post)
• Spiritual Group’s Attempt to Unmask Online Critics Goes South–Art of Living Foundation v. Does
• Did a Court Eliminate 512(h) Subpoenas?–Maximized Living v. Google
• Co-Blogger Identity Isn’t Disclosed via 512(h), but Takedown Letters Are Copyrightable

The post Internet Access Providers Aren’t Bound by DMCA Unmasking Subpoenas–In re Cox appeared first on Technology & Marketing Law Blog.

Originally posted 2012-06-21 10:41:43. Republished by Blog Post PromoterDead horse?  You’d think so.  Copyright statutory damages, that is.  We’ve been there, and done that, right? Not according to Larry Zerner, who says the calls are still coming in: Because my firm will sometimes handle copyright infringement cases on a contingency fee basis, I often get phone calls […]

The post Money for nothing appeared first on LIKELIHOOD OF CONFUSION™.

This 512(f) case reached a bench trial on the Lenz issue of what it means for a copyright takedown notice sender to consider fair use before sending their 512(c)(3) notices. Most 512(f) plaintiffs never get anywhere close to a trial, so this was progress for a 512(f) plaintiff. Still, any guesses who won?

* * *

Both litigants are YouTubers (sorry, I can’t bring myself to link to either channel). The defendant runs a “true crime” channel that covers other stuff too. The plaintiff runs a channel calling out other YouTubers. The defendant twice sent DMCA takedown notices targeting the plaintiff’s videos; the plaintiff counternoticed both times. The court tartly says “the Court’s view [is] that neither Defendant nor Plaintiff was a fully credible witness.”

The court explains why 512(f) plaintiffs can’t win: per Rossi, plaintiffs need to establish the defendants’ subjective scienter when sending the takedown notices:

Section 512(f) establishes a high bar to liability—without direct evidence that establishes the state of mind of the party issuing the takedown notice at the time of issuance, a successful plaintiff will likely have to stack inference upon inference derived from circumstantial evidence to reach a preponderance as to defendant’s state of mind.

The court, as a trier of fact, says “the evidence falls just short” of showing that the defendant didn’t consider fair use (per Lenz) before sending the takedown notices.

[Note: 512(f) cases typically fail on a motion to dismiss because the plaintiffs can’t properly allege the defendant’s scienter without doing discovery. Here, the plaintiff got all permitted discovery but still couldn’t produce a smoking gun.]

To show the defendant didn’t adequately consider fair use, the plaintiff pointed to a public statement the defendant made: “I told you and you’ve been told that if you put my intellectual property, my video, into your video, any amounts of it, I will strike it.” The court doesn’t count this evidence because it was made a year after the defendant sent the takedown notices in question here. Further, the statement doesn’t prove that the defendant failed to consider fair use when sending those takedown notices. The court also credits evidence that the defendant had conducted Google searches for “fair use.” [Note: if future takedown notice senders want to absolve themselves of 512(f) exposure, apparently best practices now include having a searchlog showing the term “fair use”…?]

The defendant repeatedly referenced both copyright and non-copyright concerns in her takedown notices. The court says:

this circumstantial evidence requires the Court to draw too many inferences solely in Plaintiff’s favor. There is no reason to think, and Plaintiff offers no support for the proposition, that the inclusion of non-intellectual property reasons for striking a video renders the invocation of intellectual property reasons less believable or irrelevant.

Finally, the plaintiff points to the defendant’s substantive overclaims as evidence of the illegitimacy of the takedown notices, to no effect.

Plaintiff also argues that Defendant could not have considered fair use because, if she had, she would not have struck Plaintiff’s videos that only included between six and 30 seconds of Defendant’s videos.  To Plaintiff, such usage is “plainly fair use.” But this argument overlooks the fact that Defendant need not have formed an objectively reasonable belief that Plaintiff’s videos infringed Defendant’s copyright; rather, she need only have had a subjective belief that the identified material infringes her copyright. [cleaned up]

The court says “this is a close case” but the plaintiff didn’t satisfy her burden. Case dismissed.

* * *

When the Lenz case first came out, some people celebrated it as proof that 512(f) required copyright owners to meditate about fair use before zinging takedown notices across the Internet. While that is true per the literal statement of the case’s holding, it has proven inconsequential to the outcome.

As I described with respect to the Lenz case a decade ago:

Let’s look at a hypothetical deposition transcript of a notice sender:

Q: Did you consider fair use?
A: Yes
Q: What steps did you take to evaluate the possibility of fair use?
A: I thought about it and decided it probably didn’t apply

Where does a 512(f) plaintiff go from here? It seems like the sender can legitimately claim that they considered fair use, albeit not in a “searching or intensive” way. 512(f) case apparently over.

That’s this case in a nutshell, no?

In other words, Lenz’s precedential benefit to a plaintiff is overwhelmed by the Rossi case. So long as the Rossi standard–that 512(f) plaintiffs must establish the defendant’s subjective scienter when sending the notice–remains in place, it is almost impossible for any 512(f) plaintiff to overcome it, with or without the Lenz case. Here, the 512(f) plaintiff got as far as a bench trial and persuaded the judge that it was a “close case,” and yet the outcome is the same as virtually all the others: 512(f) plaintiff loses.

More precisely, both sides lost here. They spent their time and money to reach a bench trial, only to have the judge publicly question both of their credibilities. On the plus side, at least they both got their day in court.

Case Citation: Shaffer v. Kavarnos, 2025 WL 2299173 (S.D.N.Y. Aug. 7, 2025). The CourtListener page.

Prior Posts on Section 512(f)

* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

The post In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos appeared first on Technology & Marketing Law Blog.

Originally posted 2007-03-03 22:56:45. Republished by Blog Post PromoterHope you enjoyed the lunar eclipse! Happy PuRiM!

The post “Behind the Mask” – Likelihood of occlusion appeared first on LIKELIHOOD OF CONFUSION™.

The plaintiff claims that “video games are designed, marketed, and sold in a way that creates and sustains addiction in users.” This becomes the anchor for a mondo 260 page complaint against Epic Games, Roblox, Mojang, Microsoft, Meta, Google, Another Axiom, Rec Room, VRChat Inc., Banana Analytics, LLC, InnerSloth, LLC, and PlayEveryWare. In February, Epic, VRChat, Meta, and Rec Room had their claims sent to arbitration. In this ruling, the court grants the motion to dismiss by Another Axiom and Banana Analytics (the “Developer Defendants”) and Google and Roblox (the “Platform Defendants”).

The Platform Defendants

The court says that Google and Roblox win based on Section 230 because “the Court would have to treat the Platform Defendants as publishers or speakers of content created by third parties in order to hold them liable on any of Plaintiff’s claims.”

The court explains:

the allegedly addictive features Plaintiff identifies are not attributable to the Platform Defendants. The allegedly addictive features identified by Plaintiff include “microtransactions and other in-game monetization systems,” “near miss[es],” “exciting animations,” “chasing,” “[f]ear of missing out,” “exclusivity” of prizes, “entrapment,” “sunk cost effect,” “loot boxes,” “rubber-banding,” “pay-to-win models,” “reward systems,” “artificial intelligence and bots,” and “dark patterns.” Those features constitute facets of ready-to-play video games that the Platform Defendants make available to users through Google Play and Roblox; in other words, the features are created and developed by third-party information content providers, which the Platform Defendants then make available. Section 230 protects the Platform Defendants from theories of liability that seek to hold them accountable for type of conduct

The plaintiff tries a panoply of arguments to get around this:

• Any profiting derived from in-game microtransactions “is done within the Platform Defendants’ roles as publishers facilitating the use of third-party content.” Cite to Coffee v. Google.
• “To the extent Roblox offers any of the allegedly addictive features to users to utilize in creating games, they are provided as tools for users—and they do not exist in the form Plaintiff describes until users incorporate them into their games.” Cite to Angelilli v. Activision.
• “providing explanatory tutorials so users understand how to operate a tool does not rise to the level of qualifying as substantial affirmative conduct.”
• “Plaintiff alleges Roblox has a “social-gaming” component that allows “users to interact with friends or other users within the game,” which creates a competitive environment allegedly further addicting users. However, allowing users to share content they created with each other also falls within Roblox Corp.’s role as a publisher.”
• “Providing an operating system for a third-party to use does not convert the third-party’s content into Google’s.”
• “making games available for purchase in the Google Play store is precisely the type of publishing activity protected by Section 230.”

The court summarizes its 230 discussion:

The conduct alleged in the amended complaint targets the Platform Defendants precisely for the role they play in making third-party created video games available to users through their platforms. Section 230 forecloses liability for this type of conduct, and it is apparent on the face of the amended complaint that all claims against the Platform Defendants must be dismissed on this basis.

Developer Defendants

The developers invoked the First Amendment, to which the plaintiff argued that it was suing over conduct, not content. The court sides with the developers. Citing the Brown SCOTUS ruling, the court says “Where a plaintiff seeks to hold a video game developer liable for the content of their products, strict scrutiny applies.”

The court distinguishes the In re Social Media Addiction ruling because “the Developer Defendants create video games, which are entitled to First Amendment protection as a whole, not in a piecemeal manner like social media platforms.” (Summarizing First Amendment protection as “piecemeal” is a pretty good sign that the prior court got it wrong).

As for the content/conduct distinction, the court says:

Plaintiff’s claims, in essence, seek to hold the Developer Defendants liable because their video games are made too entertaining by these “defective” elements. This is content-based liability that is not permitted…

the allegedly defective features, as pled by Plaintiff in this case, are properly considered video game content; they are elements and features of video games. Requiring the Developer Defendants to remove these allegedly addictive features would force them to change the content of the games to make them less enticing or enjoyable for users….

This brings to mind the meme I generated for the Angelilli case:

To get around this, the plaintiff argued that it’s just seeking the remedy of warning labels. The court doesn’t agree:

[mandatory warnings would] unconstitutionally force them to warn of potential effects of viewing protected expressive content. A mandate of this kind would violate the Developer Defendants’ constitutional free speech rights….Plaintiff’s amended complaint alleges the content of video games causes addiction; any warning about a risk of harm from playing video games would be warning about the content.

Unsurprisingly, the claims fail strict scrutiny. The court says “Preventing future addiction in children is compelling, yet the changes that are requested would apply to all users of the games and is therefore not narrowly tailored for children.” The court cites Reno v. ACLU–but is that still good law post-FSC v. Paxton?

The court continues:

the features Plaintiff identifies as addictive, stated generally as “the innovative video game monetization inventions and ideas intended to lure and addict users,” is a very broad category of content that may be addictive for some individuals but not others. To prohibit such a broad category of video game features would strongly stifle development as game developers would fear that any new game feature that users find attractive could result in significant financial liability. The chilling effect on protected expression would be broad, even for minors

Amen! I make this point about the inevitable conflicts among user subpopulations in my Segregate-and-Suppress article. But I would note that the problem isn’t just the chilling effect on publishers. It’s also a means-fit problem. The intervention doesn’t advance the plaintiff’s stated goal of “protecting children” because some kids benefit and some kids won’t. In other words, if the intervention hurts some minor subpopulations, then by definition it isn’t narrowly tailored to serve the state’s purported interest to protect minors. This is a fundamental point that infects all of the lawsuits in this genre.

As a parent, these addiction lawsuits are heartbreaking. I’m sure there are some real human tragedies behind the cases. At the same time, the defendants may not be in the causal change, and the lawsuits are censorial in intent and effect when plaintiffs try to convert standard product marketing techniques into mass-torts.

Case Citation: Courtright v. Epic Games, Inc., 2025 WL 2319148 (W.D. Mo. August 11, 2025)

BONUS: Murphy v. Roblox Corp., 2025 WL 2327100 (S.D. Cal. July 9, 2025). This is a case over minors’ purchases via Robux. Roblox sought to send the dispute to arbitration, but the court says that Roblox can’t prove that the parents agreed to the arbitration clause. Roblox has appealed this ruling to the Ninth Circuit.

Prior Blog Posts on Roblox

• Video Game Addiction Case Mostly Sent to Arbitration–Orellana v. Roblox (Catch-up Post)
• Section 230 and the First Amendment Curtail An Online Videogame Addiction Lawsuit–Angelilli v. Activision
• Roblox Faces Potentially Unlimited Copyright Liability—Robinson v. Binello
• Roblox Must Defend Illegal Gambling Claims–Colvin v. Roblox
• Roblox Sanctioned for SAD Scheme Abuse–Roblox v. Schedule A Defendants
• If TOS Formation Fails, Bad Legal Outcomes Are Likely to Follow–Doe v. Roblox

The post Google and Roblox Defeat Videogame Addiction Lawsuit–Courtright v. Epic Games appeared first on Technology & Marketing Law Blog.

Originally posted 2005-03-30 16:58:00. Republished by Blog Post PromoterJust had a bizarre experience while doing routine tracking of where readers of the blog come from. The most recent referrer was from an automated Google translation page — translating the first screen of Likelihood of Confusion into Gallic. I knew Google would get me back, sooner […]

The post Translate This appeared first on LIKELIHOOD OF CONFUSION™.

Originally posted 2012-04-09 17:37:13. Republished by Blog Post PromoterCNET News / Reuters: The makers of Scrabble have asked Facebook to remove a popular online version of the word game, Scrabulous, which they say infringes their copyright. The U.S. and Canada rights to Scrabble are owned by Hasbro, the world’s second-largest toy and game company, while […]

The post Not so Scrabulous appeared first on LIKELIHOOD OF CONFUSION™.